R v Maloh

[2019] NSWDC 481

District Court

New South Wales

Medium Neutral Citation:	R v Maloh [2019] NSWDC 481
Hearing dates:	23 May 2019
Decision date:	23 May 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Sentence of imprisonment of 3 years 2 months with a non parole period of 1 year 10 months.
Catchwords:	CRIME - SENTENCE - attempted break and enter with intent to commit serious indictable offence.
Legislation Cited:	Crimes Act 1900 (NSW), ss 113(2) and 344A(1).
Category:	Sentence
Parties:	Regina (Crown) Punou Maloh (Offender)
Representation:	Ms Velcic (ODPP) Mr Robinson (Counsel for the offender)
File Number(s):	2017/296581
Publication restriction:	Nil

Judgment

1. Punou Maloh you appear for sentence today in relation to one offence, that is, attempting to break and enter a dwelling house with the intention of committing a serious indictable offence (namely intimidation) in a circumstance of aggravation, i.e. that you were armed with an offence weapon, being an item similar in appearance to a firearm.

2. This involves a contravention of s 113(2) of the Crimes Act in conjunction with s 344A(1) of the same Act. The maximum penalty for the offence is 14 years’ imprisonment and there is no standard non-parole period.

3. The facts surrounding your offending are, to a large extent, contained in a Statement of Agreed Facts that have been supplemented in a significant way by the psychologist’s report which has been tendered on your behalf - together with the evidence that you have given to me today.

4. I find the facts to be as follows.

5. During the day and the evening of 1 October 2017 (which seems to have been Grand Final day of the NRL) you consumed a very significant quantity of alcohol - which was supplemented by an unknown quantity of cocaine and ice. To put it in the vernacular, you were “off your head.”

6. In the early hours of the morning of 2 October 2017, whilst in this heavily intoxicated and (as I shall reveal) delusional state, you went to premises in the suburb of Shalvey. You did not know the people who lived in that house. You had never been to that house before in your life.

7. Somehow you had obtained possession of the item that was similar in appearance to a firearm.

8. You went to the front door of that home in which lived the two complainants and their daughter and their niece. The complainants were 35 years old and the young people were 17 and 15 years old.

9. You went to the front door and you began knocking on that door; then you tried to kick it in.

10. The adult male complainant went to the front door, having heard this noise, and saw you there. Not only did he see you through the glass window next to the door, he saw what to him appeared to be a gun in your hand. You were trying to kick the door down and he was leaning against the door trying to prevent your entry.

11. As you kept kicking at the front door, you called out “Adam, I know you are in there”. That was not the name of the man who lived in the house. You have told me you do not know anybody who has that name. The male complainant’s wife came to assist her husband to push against the front door to prevent you from getting in - but you continued to kick and bang it and yell to the complainants to let you in.

12. Amongst the things you said that night were: that you were the police; that you were going to shoot; that the man Adam would be dead; and that you knew he was there.

13. Whilst this was occurring, the police were called.

14. After a time you fled the scene but you were taken into custody fairly quickly.

15. When you were taken into custody by the police, you made another deranged or delusional assertion. You said to the police: “What would you do if your best mate slept with your wife?”

16. You have said on oath today, and I accept, that not only did you not know anybody called Adam, you have never had any reason to doubt the fidelity of your partner.

17. It is clear enough to me that your behaviour on this night - your delusional beliefs about your partner’s infidelity, that the resident of this house was named Adam and was involved in that infidelity, the obtaining of the gun and the attempt to kick in the house door – were all a result of the excessive consumption of legal and illegal drugs by you in the time immediately before the incident.

18. In terms of its objective seriousness for an offence of its kind it is a mid-range offence.

19. In addition to that principal offence, you have asked me to take into account one matter on a Form 1 which I have certified. The matter on the Form 1 relates to damaging property. But, because of the nature of that matter and its interrelationship with the principal offence, there will be no meaningful increase in the sentence by reference to the matter on the Form 1.

20. You are 24 years of age.

21. Your background has been given to me though a very helpful psychological report. It is clear that as a young child you sustained severe domestic violence at the hands of both of your parents and of all of your brothers. The domestic violence which all of them inflicted on you has caused you very severe psychological consequences.

22. Because of that, you began “mucking up” at school. You were expelled from high school. As a result you were sent to boarding school in Tonga where you were further traumatised. You received beatings at that school both from the prefects and staff - it even extended on an occasion to you being tied to a tree.

23. The treatment you received at the hands of your own family (in an environment in which you were entitled as a child to feel secure) and from a boarding school (in another environment in which you were entitled to feel secure) has had a significant damaging effect on you.

24. In this context I have noted what the psychologist said when she apparently asked you about whether you had suicidal thoughts or intent as a consequence of your psychological injury and you said “No, I think my brothers hurt me enough”.

25. I am satisfied that your turning to alcohol when you were 13, cannabis when you were 15, and methamphetamine in 2015 were all a direct result of your attempt to self-medicate to deal with the trauma inflicted upon you by your own family when you were a child.

26. You therefore had a dysfunctional upbringing in the terms that the High Court has directed sentencing judges to take into account - and which thereby reduces the moral culpability of your offending.

27. Consequently, whilst general deterrence still applies in your case, it is of reduced significance. On the other hand, specific deterrence and the protection of the community remain fully engaged.

28. Once you finished school in Tonga, you came back to Australia where you have worked as a glazier. You have mostly (if not entirely) worked for one or more of the brothers who inflicted violence on you as a child.

29. Your relationship with your brothers, both as a child and as an adult, has been, and is, a most unsatisfactory one. I agree with the psychologist who says that your prospects of rehabilitation involves you moving away from your family; and you ceasing to have employment, or any other meaningful connection, with your brothers.

30. You have had no professional assistance to deal with your depressive condition or the consequential addictions to alcohol and illicit drugs. But it is of significance to me to note that you have managed to give up methamphetamine.

31. There are no misconduct charges whilst you have been in custody for almost one year, eight months. Specifically, there are no misconduct charges of using drugs whilst you have been in custody (and in circumstances where it is a notorious fact that it is easy to get drugs in gaol).

32. Unsurprisingly, with this background, you do have a criminal record of offences of violence and damaging property. You are therefore not entitled to the leniency which, in appropriate circumstances, can be given to a first offender.

33. Your plea of guilty was entered late - on the first day of trial. For the utilitarian value of the plea, and because it contains an element of remorse, I shall give you a discount of ten per cent.

34. I accept that you are now genuinely remorseful for what you did to these people on that night.

35. Remorse is an important factor in the Court assessing an offender’s prospects of rehabilitation but is not the only one.

36. If you obtain counselling to deal with your drug and alcohol issues, and if you obtain counselling to deal with your underlying depressive condition as a result of your childhood, I think you have (as your counsel has submitted) good prospects of rehabilitation. Those prospects would be enhanced by a longer period on parole.

37. No sentence other than a period of full time imprisonment is appropriate and that matter was properly conceded by your experienced counsel.

38. You have been in custody since the date of your arrest on 2 October 2017, solely referable to this matter, and the sentence that I shall shortly impose will be backdated to that date.

39. I shall make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period. I have made that finding: first, because, as I have said, your prospects of rehabilitation would be enhanced by a longer period on parole; secondly, because it is your first time in custody; thirdly, because of your drug and alcohol issues; and finally because of your age.

40. Punou Maloh of the offence of attempt to break and enter a dwelling house with intent to commit a serious indictable offence in circumstances of aggravation (of which you were convicted earlier today), except for your plea of guilty, I would have sentenced you to a term of imprisonment of three years, six months. Because of the discount of ten per cent, the term of imprisonment is three years and two months. Because I made a finding of special circumstances, the non-parole period will be one year and 10 months to date from 2 October 2017 and which will expire on 1 August 2019. I fix a balance of one year and four months to date from 2 August 2019 and which will expire on 1 December 2020.

41. If you’ll now go downstairs with the officers, thank you.

Decision last updated: 10 September 2019